13.8.2011   

EN

Official Journal of the European Union

C 238/3

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Set aside the judgment of the General Court of 16 December 2010 in Joined Cases T-231/06 and T-237/06;

—

give judgment itself in this case by annulling Commission Decision 2008/136/EC (1) of 22 June 2006 in so far as the Commission found that an amount of EUR 42 457 million must be deemed to be new State aid and must be recovered as part of a total sum of EUR 76 327 million (plus interest);

—

order the Commission to pay the costs, including the costs of the proceedings in the General Court.

1.

the General Court erred in basing its finding that the transfer constitutes new aid on the fact that Article 109a of the Law on media (Mediawet) was introduced after the entry into force of the Treaty;

2.

the General Court erred in basing its finding that the transfer constitutes new aid on the criterion that the aid meets the ‘specific needs’ (of the public broadcaster);

3.

the General Court erred in basing its finding that the transfer constitutes new aid on the consideration that the public broadcaster was thereby (particularly) overcompensated. The amount of any overcompensation does not determine whether the transfer constitutes new aid. In any event, the General Court gave insufficient reasons for its finding;

4.

the General Court erred in deciding that the source of the transfer is not relevant to the issue whether the transfer constitutes new aid. The General Court thus disregards the distinction between new and existing aid. In any event, the General Court gave insufficient reasons for its finding;

5.

the General Court gave insufficient reasons for its finding that the reserves transferred cannot be assumed to come from the annual financing of the public broadcasters and thus from existing aid;

6.

the General Court gave insufficient reasons for its finding that the funds transferred come from ad hoc payments and therefore constitute new aid;

7.

even if the General Court’s grounds as contested above have to be read in conjunction with each other, they cannot lead to the conclusion that the transfer constitutes new aid.